The U.S. Immigration and Naturalization Service (INS) headquarters in Washington D.C. has issued a Memorandum to its field offices to provide border officers with guidance on cabotage issues.
While this sounds like good news, the fact of the matter is unfortunately, nothing significant has changed in INS cabotage policy. The memorandum provides an excellent summary of most of the major issues. The key principle in the topic of cabotage is the distinction between international commerce and domestic (U.S.) loads. The definition of “international commerce” is very strict, and any point-to-point activity in the U.S. will be regarded as domestic rather than international commerce. The mere fact that goods originate from a foreign source does not make the goods “foreign” for purposes of the immigration laws once the goods have come to rest at a U.S. location. The INS focuses on the transportation of goods from one location to another, not the origin or place of manufacture.
It appears that the only positive change is a clarification on trailer switching. The INS understands that trailer switching is necessary as part of international deliveries, due to Hours-of-Service rules or to allow drivers to make northbound deliveries closer to their home in Canada. The current rules allow a Canadian driver, with an international shipment, to meet at a drop yard or other location and switch trailers with another driver who is also delivering goods in an international movement. Both drivers must continue in an international move. The driver coming from Canada can switch and complete an international delivery to the U.S., and the driver coming from within the U.S., can switch and complete a delivery to Canada. Trailer switching is not allowed if the driver coming from within the U.S. will be making a delivery to another point within the U.S.
The memo also clarifies situations where a load is held up at a Customs warehouse or other government facility at the port of entry for government inspection or entry processing. The Canadian driver can enter with an empty trailer to pick up a loaded trailer previously brought from either Canada or Mexico and left at the site for inspection or processing, and then deliver that trailer to another point in the U.S. The driver must provide verification that the trailer has been under government control and that the goods originated outside the U.S. This exception is limited to goods under governmental control, and does not include goods at a Free Trade Zone or other similar designated area for international commerce.
The INS has confirmed that a U.S. carrier can hire a Canadian driver to engage in international trucking activity. The U.S. carrier may pay the driver, so long as the driver is engaged solely in international deliveries to or from the U.S.
The following is a list of permissible activities that are considered to be incidental to international commerce…
Deadheading trailers: As part of an international delivery, a Canadian driver can deadhead a trailer from one location to another within the U.S., so long as the deadhead trailer is either the one the driver came in with or the one he is departing with. A driver cannot haul an empty trailer from one location to another for purposes of “spotting” or repositioning.
Bobtailing: A Canadian driver can enter the U.S. with an empty tractor to pick up a trailer for delivery to Canada or Mexico. A driver can drop a loaded trailer from Canada or Mexico at one location in the U.S., and drive the empty tractor to another location in the U.S. to pick up a loaded trailer for delivery outside of the U.S.
Yard Moves: A Canadian driver can “spot” or “shunt” an empty trailer within a yard or lot if the movement is required to facilitate the driver’s international delivery.
Loading and Unloading: The INS views activities such as load securement or the loading or unloading of international cargo as activities that are incidental to driving duties in international commerce. Drivers often have questions on this topic, so it may be helpful to elaborate. This does not mean that a driver is required to load or unload in all circumstances; that is a question of the driver’s job description and the workplace rules at the place of loading or unloading. It just means that if the driver does perform those duties, he will not be in violation of the INS laws. There may be reasons for a driver to refuse to load or unload, but it is not proper to refuse to do so on the grounds that such conduct is illegal under U.S. law.
The following are examples of activities that are not permitted under the cabotage laws…
Free Trade Zones or Storage Facilities: It is commonplace for goods of foreign origin to be delivered to a storage facility in the U.S., pending further delivery to a U.S. point. A Canadian carrier cannot pick up such goods at a storage facility in the U.S. and deliver them to another location in the U.S. The opposite is also prohibited – a Canadian driver cannot pick up Mexican-bound freight in the U.S. and drop it off at a transfer point on the U.S. side of the Mexican-U.S. border.
Repositioning of Empty Trailers: A Canadian driver may not reposition an empty trailer between two points in the U.S., when the driver did not either enter with or depart with the trailer.
“Topping Up” With U.S. Merchandise: A Canadian driver may not “top up” an international shipment with U.S. domestic shipments.
“In-Transit” Foreign Trips: Canadian drivers cannot pick up goods in the U.S. and travel through Mexico or Canada to deliver the same goods to another location in the U.S.
I am disappointed that the INS did not expand any of its cabotage interpretations. The rule remains that, except for the very limited exceptions identified above, any pickup and delivery of the same goods or equipment within the U.S. is likely to be a cabotage violation.
– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.
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